Federal and State Employment Laws Michele Arseneau, PHR, SHRM CP - - PowerPoint PPT Presentation

Federal and State Employment Laws

Michele Arseneau, PHR, SHRM‐CP HUMAN RESOURCE CONSULTANT

This training is designed to provide general information about the subject matter covered. Neither TAC nor the trainers are engaged in rendering legal advice. If you need legal advice, TAC recommends that you seek the services of a competent attorney who is familiar with your specific situation.

Liability – The “L” Word

Employers are paying large $$$ due to charges such as:

• Wrongful Termination
• Discrimination
• Retaliation
• Other claims (i.e. wrongful hire and

harassment)

EEOC Litigation Statistics

2016 EEOC had 91,503 charges filed

• Retaliation is still #1 – 45.9% of claims –

highest it has ever been

• Texas has 9,308 charges filed in 2016– more

than any other state in the nation

• Record numbers for disability 30.7 for 2016
• EEOC secured $522M from employers

Will Retaliation Claims Increase?

Three Recent Supreme Court Cases Say YES!

2009 – Crawford vs Metropolitan Government

• Participating in Investigations

2011 – Thompson vs NA Stainless LP

• Third Party Associative Retaliation

2011 – Kasten vs Saint-Gobain Performance Plastics Corp.

• FLSA Complaints

Liability Control

• Comply with all legislation

‐ Federal & State

• Develop employment policies & procedures

for your office that are compliant with the Federal and State laws & consistent with your counties policies and procedures.

Liability Control

• Treat all employees consistently and fairly
• Have specific and valid work‐related reasons for

actions and decisions

• Document those reasons

Document, Document, Document!

The Myth of “At Will”

Employees can be terminated:

• At any time
• For any good reason, a bad reason, or no reason
• With or without notice

EXCEPT:

• For an illegal reason, or
• Employee has property interest in job

(implied contract)

Employment At‐Will TX Common Law

This means all employees of the County are considered to be “At-Will” employees and the employment status shall not be considered a contract of employment or for any specified length of time.

Employment At‐Will TX Common Law

• Also, employment may be terminated with or without

cause and with or without notice at any time.

• Nothing in any County manual or any other document
• r statement should limit the right to terminate

employment at‐will.

Employment At‐Will TX Common Law This means the employment relationship may be ended at any time a the will of the County or the will of the employee.

Employment At‐Will TX Common Law No Elected Official, Appointed Official

• r Supervisor has the authority to

enter into an agreement for employment other than at‐will.

Employment At‐Will TX Common Law

Terminations can be based upon:

• Good Reason
• No Reason
• Bad Reason
• With or Without Notice

HOWEVER…

Employment At‐Will TX Common Law

There are ILLEGAL reasons for terminations that include: protected status under Federal

• r State Laws.

protected status under Federal

• r State Laws.

Employment At‐Will TX Common Law Exercising Legal Rights Such As:

• Filing valid worker’s comp claim
• Whistle blowing
• Filing a wage and hour claim
• Filing a claim with the EEOC
• Witness for another employee

Employment At‐Will TX Common Law

Property Interest Problems

• Supervisor guarantees duration of

employment

• County has inflexible discipline policy

‐ Employee would have the “right” to “due process”

0.0% 10.0% 20.0% 30.0% 40.0% 50.0% 60.0%

Percentage of Total State Charges 2016 EEOC Charges in Texas

Retaliation (all) ‐ 49.8 Retaliation (Title VII) ‐ 39.7 Race ‐ 34.9 Sex ‐ 29.7 Disability ‐ 29.8 Age ‐ 21.5 National Origin ‐ 12.8 Color ‐ 4.3 Religion ‐ 3.8 Equal Pay Act ‐ 1.0 Gina ‐ .03

0.0% 10.0% 20.0% 30.0% 40.0% 50.0% 60.0%

2016 EEOC Charges

% of US charges % of total state charges

8,748 9,310 9,952 8,929 9,068 8,035 9,539 9,308

7500 8000 8500 9000 9500 10000 10500 2009 2010 2011 2012 2013 2014 2015 2016

Total EEOC Charges for Texas (2009‐2016)

Total EEOC Charges for Texas

Federal Laws to Consider

• Title VII of the Civil Rights Act of 1964

Race, Color, Religion, Sex, National Origin  Race/Color – skin color, hair texture, facial features Growing claims  Religion – DOJ took on a case in 2011 Sabbath, holidays, prayer  Sex –Sexual Harassment, Pregnancy, Equal Pay  National Origin – Birthplace, Accent, Surname

Exception: Bona fide occupational qualification (BFOQ)

Federal Laws to Consider

• Fair Labor Standards Act (FLSA)

Covers minimum wage $7.25 as of 7‐24‐09 Overtime Proper recordkeeping Non‐exempt vs. Exempt employees Child Labor Laws Nursing Mothers Break

Federal Laws to Consider

• Americans With Disabilities Act –

Amended 2008 ADAAA

Need accurate job descriptions and reasonable accommodations – Don’t have standard “No Light Duty” clauses need the “Interactive Process” for each specific request. No Magic Language Required

• Uniformed Services Employment

and Reemployment Rights Act

Job protection and reinstatement required

Federal Laws to Consider

• Pregnancy Discrimination Act

Treat pregnancy the same as any other temporary illness

• Age Discrimination in Employment Act

Age protection is 40 and above

• Family Medical Leave Act and Military Family Leave National

Defense Authorization Act 2008/2009 It is your responsibility to get the employee the appropriate forms – No magic language required!

Federal Laws to Consider

• Immigration Reform and Control Act
• Genetic Information Non‐Discrimination Act of 2008
• Equal Pay Act of 1963/Lilly Ledbetter Act 2009
• Fair Credit Reporting Act

Texas State Laws

• Texas Whistleblower
• Texas Worker’s Compensation Act
• Texas Unemployment
• Constitutional rights

Questions?

Northwest Northwest

• Michele Arseneau
• 512-461-1667
• michelea@county.org

Northeast Northeast

• Diana Cecil
• 512-924-6360
• dianac@county.org

Southeast Southeast

• Mary Ann Saenz-

Thompson

• 512-921-9056
• maryanns@county.org

Southwest Southwest

• Rollie Ford
• 512-680-1994
• rollief@county.org

Northwest Northwest

• Michele Arseneau
• 512-461-1667
• michelea@county.org

Northeast Northeast

• Diana Cecil
• 512-924-6360
• dianac@county.org

Southeast Southeast

• Mary Ann Saenz-

Thompson

• 512-921-9056
• maryanns@county.org

Southwest Southwest

• Rollie Ford
• 512-680-1994
• rollief@county.org